Citation Nr: 0501969
Decision Date: 01/27/05 Archive Date: 02/07/05
DOCKET NO. 03-18 725A ) DATE
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On appeal from the Department of Veterans Affairs (VA)
Regional Office (RO) in North Little Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for residuals of a
right rotator cuff tear.
2. Entitlement to service connection for a cervical spine
disability.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Robert E. O'Brien, Counsel
INTRODUCTION
The veteran had active service from May 1966 to May 1968.
Service with the United States Army Reserve has also been
indicated. Documentation in the veteran's personnel records
discloses that he was discharged from the U.S. Army Reserves
in April 2003.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2002 rating decision of the
VARO in Little Rock that denied entitlement to the benefits
at issue.
The appeal is REMANDED to the RO by way of the Appeals
Management Center in Washington, DC. VA will notify the
veteran should further action be required.
REMAND
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA). This law
redefined the obligations of VA with respect to the duty to
assist and includes an enhanced duty to notify a claimant as
to the information and evidence necessary to substantiate a
claim for VA benefits. Regulations implementing the VCAA
have been enacted. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and
3.326(a) (2004). The VCAA requires VA to notify the claimant
and the claimant's representative of any information and any
medical or lay evidence not previously provided to the
Secretary that is necessary to substantiate the claim. As
part of the notice, VA is to specifically inform the claimant
and the claimant's representative of what portion, if any, of
the evidence is to be provided by the claimant and what part,
if any, VA will attempt to obtain on behalf of the claimant.
See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b);
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
A review of the record reveals that the veteran has been
provided with adequate notice and assistance with regard to a
claim for service connection for diabetes mellitus. However,
he has not been provided with notice of the provisions of the
VCAA consistent with the holding in Quartuccio, supra, with
regard to the claims that have been certified for the Board's
review at this time.
Further review of the evidence of record, including the
veteran's testimony at the hearing before the undersigned
Acting Veterans Law Judge at the VARO in Little Rock in June
2004, reflects that the veteran and his representative allege
that he has been seen by a number of different physicians for
right shoulder and cervical spine problems ever since a motor
vehicle accident he sustained while on active duty for
training status with Company B, 2nd Battalion/379th Regiment,
7th Brigade (DS), 95th Division (IT), Barling, Arkansas
72923, in August 1998. Of record is a report of
investigation of the incident in which it was reported the
medical diagnosis was "contusions and abrasions" resulting
from the motor vehicle accident. In the remarks column,
details pertaining to the incident were reported. There was
a notation that the information was to be considered on
another page. A review of the record discloses the
additional information is not in the claims folder. The
available evidence pertaining to the report of investigation
contains no reference to the right shoulder or the cervical
spine being involved.
There are no records from the veteran's unit with regard to
the incident. The available records do reflect that the
veteran was able to serve with the Reserves for several years
thereafter until his discharge from the United States Army
Reserve in March 2003. The available medical records
document the veteran has had problems with the right shoulder
and the cervical spine.
VA accorded the veteran an examination of the joints in July
2002. For some reason, the claims folder was not available
and therefore was not reviewed by the examiner. The veteran
reported to the examiner that he injured his right shoulder
in a motor vehicle accident in "1988" (sic). None of the
medical evidence of record refers to opinions as to the
etiology of any current cervical spine disorder or right
shoulder disorder.
The Board notes that assistance by VA includes providing a
medical examination or obtaining a medical opinion when such
an examination or opinion is necessary to make a decision on
a claim. 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R.
§ 3.159(c)(4) (2004). When medical evidence is inadequate,
VA must supplement the record by seeking an advisory opinion
or ordering another medical examination, particularly one in
which a review of the entire claims folder is performed by
the examiner. Colvin v. Derwinski, 1 Vet. App. 171 (1991)
and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992).
In view of the foregoing, the Board believes that further
development is in order and the case is REMANDED for the
following actions:
1. The RO should review the record and
take any necessary action to ensure
compliance with all notice and assistance
requirements set forth in the VCAA and
codified at 38 C.F.R. §§ 3.102, 3.156(a),
3.159, and 3.326(a) (2004). The RO
should ensure that the veteran has been
properly advised of (a) the information
and evidence not of record that is
necessary to substantiate his claim, (b)
the information and evidence that VA will
seek to provide and (c) the information
and evidence that the veteran is expected
to provide.
2. Through official channels, the RO
should obtain the veteran's complete
personnel and medical records pertaining
to his service with the United States
Army Reserve, especially in August 1998
when he was with Company B, 2nd
Battalion, 379th Regiment, 7th Brigade
(DS), 95th Division (IT), Barling,
Arkansas 72923. Also of interest is the
complete report of investigation
pertaining to a line-of-duty and
misconduct status investigation dated
April 28, 2000.
3. The RO should request that the
veteran identify all VA and private
medical care providers who have examined
or treated him for right rotator cuff
problems and cervical spine disability
since August 1998. The veteran should be
asked to recall as best he can the
addresses of those physicians and any
other physicians he lists. He should be
requested to complete and return
appropriate release forms so that VA can
obtain any identified evidence not
already of record. The RO should
reference the veteran's June 2004
testimony in compiling the list of
physicians. All information which is not
duplicative of evidence already received
should be associated with the claims
file.
4. Thereafter, the RO must make
arrangements with the appropriate VA
medical facility for the veteran to be
afforded an orthopedic examination for
the purpose of determining the nature and
etiology of his cervical spine disability
and any right shoulder disability,
particularly right rotator cuff tear.
The claims file, including all records
received in response to the above
requests, must be made available to and
reviewed by the examiner in conjunction
with the examination. The examination
report must be annotated that the claims
file was in fact reviewed in conjunction
with the examination. All tests that are
deemed helpful should be conducted.
The examiner is asked to provide an
opinion as to whether it is at least as
likely as not (50 percent or greater
likelihood) that any currently-diagnosed
cervical spine disorder and/or right
rotator cuff tear found to be present was
either caused or aggravated (worsening of
underlying condition versus a temporary
flare up of symptoms) by any incident
during the veteran's periods of active
duty for training, particularly by the
motor vehicle accident in August 1998.
It is requested that the physician
discuss the prior medical evidence and
reconcile any contradictory evidence.
The examiner must provide a comprehensive
report including complete rationales for
all opinions and conclusions reached,
citing the objective medical findings
leading to his or her conclusion. If
further testing or examination by other
specialists is determined to be warranted
in order to evaluate the conditions at
issue, such testing or examination is to
be accomplished prior to completion of
the examination report.
5. Thereafter, the RO should
readjudicate the claims. If the benefits
sought are not granted, the veteran and
his representative should be provided
with a supplemental statement of the
case. This must contain notice of all
relevant actions taken on the claims, to
include a summary of the evidence and
applicable law and regulations considered
pertinent to the issues currently on
appeal. An appropriate period of time
should be allowed for response.
Then, the case should be returned to the Board, following
applicable appellate procedure. The veteran need take no
action unless otherwise notified by VA; however, he is hereby
notified that failure to report for any scheduled VA
examination without good cause shown may adversely affect the
outcome of his claim for service connection and may result in
denial. 38 C.F.R. § 3.655 (2004).
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at
38 U.S.C. §§ 5109B, 7112).
_________________________________________________
HEATHER J. HARTER
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).